Citation Nr: 0434393
Decision Date: 12/30/04 Archive Date: 01/05/05
DOCKET NO. 03-05 248 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
residuals of a spine/back injury.
2. Entitlement to service connection for residuals of a back
injury, including cervical, thoracic and/or lumbar spine
disability(ies).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from October 1964 to July
1965.
The Board of Veterans Appeals (Board) notes that the issues
on appeal arose from Department of Veterans Affairs (VA)
Regional Office (RO) rating decisions.
A historical review of the record shows that in an unappealed
July 1978 decision the RO originally denied service
connection for residuals of a spine/back injury.
In August 1999, the veteran filed a reopened claim of service
connection for residuals of a spine/back injury.
In a rating decision of January 2000, the RO essentially
denied service connection for residuals of a spine/back
injury, including disability(ies) of the cervical, thoracic
and lumbar spine. In February 2000, the veteran was notified
of the decision.
In a March 2000 rating decision, the RO essentially confirmed
and continued the denial of service connection for residuals
of a back injury.
In a January 2001 document filed by the veteran, he
essentially continued to pursue a claim of service connection
for residual of a spine/back injury in service, which may be
liberally construed as a timely notice of disagreement (NOD).
In a February 2002 rating decision, the RO essentially denied
service connection for residuals of a spine/back injury,
including cervical, thoracic and/or lumbar spine
disability(ies) in accordance with the Veterans Claims
Assistance Act of 2000 (VCAA), which, among other things,
redefined the obligations of VA with respect to the duty to
assist and included an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. The veteran filed a second NOD in
April 2002.
The Board notes that in accordance with the United States
Court of Appeals for Veterans Claims (CAVC) ruling in Barnett
v. Brown, 8 Vet. App. 1 (1995), the Board is obligated to
address the issue of new and material evidence regardless of
whether the RO based its determination on that issue.
The Board notes that 38 C.F.R. § 3.156 was recently amended,
and that the standard for finding new and material evidence
has changed as a result. 66 Fed. Reg. 45,620, 45,630 (August
29, 2001) (codified at 38 C.F.R. § 3.156(a)). However, this
change in the law is not applicable with respect to the claim
of service connection for residuals of a spine/back injury,
because the veteran's claim was filed prior to August 29,
2001, the effective date of the amendment. 66 Fed. Reg.
45,620, 45,629 (August 29, 2001).
Thus, the question for Board consideration is whether new and
material evidence has been submitted to reopen the claim of
entitlement to service connection for residuals of a
spine/back injury, under the standard of review in effect
prior to August 29, 2001.
In a July 2003 statement, the veteran withdrew from appellate
consideration the issues of entitlement to service connection
for gastric ulcers, hepatitis C, arteriosclerotic heart
disease with hypertension, rheumatoid arthritis, bilateral
carpal tunnel syndrome, and residuals of an electrical burn
injury. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002);
38 C.F.R. §§ 20.202, 20.204 (2004).
For reasons that are apparent in the decision cited below,
the issue of entitlement to service connection for residuals
of a back injury, including the cervical, thoracic and/or
lumbar spine disability(ies) on a de novo basis, has been
added for appellate consideration.
FINDINGS OF FACT
1. In an unappealed July 1978 decision, the RO denied
service connection for residuals of a spine/back injury as
there was no evidence of a pertinent cervical, thoracic
and/or lumbar spine disability identified in active service
or following separation from active duty.
2. Evidence submitted since the unappealed July 1978 RO
rating decision bears directly and substantially on the issue
at hand, is neither cumulative nor redundant, and is so
significant that it must be considered in order to fairly
decide the merits of the claim.
3. The veteran's service medical records are silent for any
identifiable chronic back disability, including disability of
the cervical, thoracic and/or lumbar spine.
4. The competent and probative medical evidence fails to
demonstrate an etiologic link or nexus between any cervical,
thoracic or lumbar spine disability, including arthritis as
first noted many years postservice and any incident of active
duty.
CONCLUSIONS OF LAW
1. Evidence submitted since the unappealed July 1978 rating
decision wherein the RO denied the claim of entitlement to
service connection for residuals of a spine/back injury, is
new and material, and the veteran's claim for that benefit is
reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 2002);
38 C.F.R. § 3.156(a) (under the standard of review in effect
prior to August 29, 2001); 38 C.F.R.
§§ 3.104(a), 3.160(d), 20.1103 (2004).
2. Chronic disability(ies) of the cervical, thoracic and/or
lumbar spine, however diagnosed, including arthritis was/were
not incurred in or aggravated by active duty nor may
arthritis be presumed to have been incurred therein. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38
C.F.R. §§ 3.303(d), 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background.
The veteran's service medical records are silent for any
cervical, thoracic or lumbar spine disability, however
diagnosed. Service medical records dated in March 1965,
refer to treatment for injuries sustained by the veteran
following a fall of 20 feet down a ladder; however, there was
no finding or complaint diagnostic of an underlying
identifiable chronic cervical, thoracic or lumbar spine
disability.
A July 1965 service separation physical examination report
shows a normal clinical evaluation of the spine. No
pertinent spine/back complaint was noted. He was
administratively separated from the service due to
unsuitability secondary to an emotionally unstable
personality.
In July 1978, the veteran filed an original application for
service connection for residuals of a spine/back injury in
active service.
The veteran failed to report for an April 1978 VA orthopedic
examination in connection with his claim of service
connection for residuals of a spine/back injury without good
cause.
In July 1978, the RO notified the veteran of the denial of
his claim of service connection for residuals of a spine/back
injury for failure to report for a VA examination.
In August 1999, the veteran filed a reopened claim of service
connection for residuals of a spine/back injury.
Medical evidence dated in late 1999, submitted in support of
the veteran's claim essentially revealed generalized
degenerative joint disease (DJD), to include the cervical
spine and back.
In a January 10, 2000, rating decision the RO denied service
connection for a
spine /back disability. On February 28, 2000, the RO
notified the veteran of the denial action.
In a March 2000 rating decision, the RO essentially confirmed
and continued the denial of service connection for
disabilities of the cervical, thoracic and lumbar spine. The
veteran was notified of the denial action.
In January 2001, the veteran essentially continued his claim
of service connection for residuals of a spine/back injury,
which may be liberally construed as a NOD to the denial of
his claim.
Private medical evidence dated in the 1970's, submitted in
support of the veteran's claim were silent for any pertinent
findings regarding the cervical, thoracic and/or lumbar
spine.
Along with a June 2001 statement, the veteran appears to have
submitted an article regarding treatment of cervical spine
symptoms. There is no date of receipt stamp noted on the
document.
In February 2002, the RO denied service connection for
disabilities of the cervical, thoracic and lumbar spine. In
April 2002, the veteran filed a timely NOD.
Additional private medical evidence received in support of
the veteran's claim, include Social Security Administration
(SSA) records which essentially refer to the presence of
chronic cervical and low back disabilities, variously
diagnosed, including arthritis between approximately 1999 and
2004.
A March 1999 medical record notes that the veteran reported a
history of osteoarthritis and low back pain. It was noted
that he previously worked as a carpenter, but had not worked
for the past two years. It was noted he had a couple of
injuries before the discontinuation of his work. Reportedly,
in 1995, he fell off of a second story level onto cement,
resulting in bruises, but no fractures. The next year, he
fractured his tailbone after falling off a ladder and landing
on a board. He noted that since the reported injuries, he
felt stiff all over and was never able to return to normal
physical functioning. He noted that his primary problem was
low back pain which had been present for 2-plus years and
getting worse.
In an October 2001 private medical statement, M.P.L., M.D.,
noted treating the veteran for ongoing pain problems for many
years. Also, it was noted that the veteran was under the
care of another physician for treatment of vertebral disease
problems.
In an undated private medical statement, the veteran's
treating physician for spine/back problems, indicated that
the veteran reported a history of neck symptoms stemming from
active service. It was noted that since then, the veteran
developed cervical spine disability, variously diagnosed. It
was noted that the veteran's cervical spine disability was a
continuation of the original 1964 neck injury.
In a May 2002 statement, S.L. noted knowing the veteran a
number of years and witnessing his physical deterioration in
the last few years. It was noted that his combination of
disabilities, included spinal/back problems which stemmed
from active duty.
In a July 2003 private medical statement, the veteran's
physician again noted as history, that the veteran originally
had a neck injury in service in 1965. The physician noted
that the veteran's cervical spondylosis is a long term
sequelae of that injury, which is now causing cervical cord
compression as well as other problems.
In July 2003, the veteran attended an informal hearing before
a Decision Review Officer (DRO) at the RO. An informal DRO
conference report is on file.
Criteria
New and Material Evidence
An application, formal or informal, which has been allowed or
disallowed by the agency of original jurisdiction, becomes
final by the expiration of one year after the date of notice
of an award or disallowance, or by denial on appellate
review, whichever is the earlier. 38 C.F.R. § 3.160(d).
In general, RO decisions which are unappealed become final.
See 38 U.S.C.A.
§ 7105; 38 C.F.R. § 20.1103. The governing regulations
provide that an appeal consists of a timely filed Notice of
Disagreement in writing and, after a Statement of the Case
has been furnished, a timely filed Substantive Appeal. 38
C.F.R.
§ 20.200.
A decision of a duly constituted rating agency or other
agency of original jurisdiction shall be final and binding on
all field offices of the Department of Veterans Affairs as to
conclusions based on the evidence on file at the time VA
issues written notification in accordance with 38 U.S.C.A. §
5104.
A final and binding agency decision shall not be subject to
revision on the same factual basis except by duly constituted
appellate authorities or except as provided in § 3.105 of
this part. 38 C.F.R. § 3.104(a).
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §
3.156(a).
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the
United States Court of Appeals for the Federal Circuit (CAFC)
noted that new evidence could be sufficient to reopen a claim
if it could contribute to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it would not be enough to convince the
Board to grant a claim.
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) under
the standard of review in effect prior to August 29, 2001.
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
It has been held that VA is required to review for newness
and materiality the evidence submitted by a claimant since
the last final disallowance of a claim on any basis in order
to determine whether a claim should be reopened and
readjudicated on the merits. Evans v. Brown, 9 Vet. App.
273, 283 (1996).
In Kutscherousky v. West, 12 Vet. App. 369 (1999), the United
States Court of Appeals for Veterans Claims (CAVC) held that
the prior holdings in Justus and Evans that the evidence is
presumed to be credible was not altered by the CAFC decision
in Hodge.
The Board does not have jurisdiction to consider a previously
adjudicated claim unless new and material evidence is
presented. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir.
1996).
In accordance with the CAVC ruling in Barnett v. Brown, 8
Vet. App. 1 (1995), the Board is obligated to address the
issue of new and material evidence regardless of whether the
RO based its determination on that issue.
If VA determines that new and material evidence has been
presented under
38 C.F.R. § 3.156(a), the case will be decided on the merits.
Williamson v. Brown, 8 Vet. App. 263 (1993).
If new and material evidence is presented or secured with
respect to a claim that has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108; Hickson v. West, 12 Vet. App.
247 (1999).
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of preexisting injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§ 1110
(West 2002); 38 C.F.R. § 3.303 (2004).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2004).
If the disorder is arthritis, service connection may be
granted if manifested to a compensable degree within one year
following separation from service.
38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2004).
The United States Court of Appeals for Veterans Claims (CAVC)
has held that, in order to prevail on the issue of service
connection, there must be medical evidence of a (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The CAVC reiterated that an appellant's lay testimony and
generic medical journal or treatise evidence that does not
specifically opine as to the relationship between his or her
condition and active service cannot establish the remaining
element of medical nexus evidence, and in fact, constitutes
only an unsubstantiated medical opinion rather than a
conclusion based on the medical evidence of record. See
Sacks v. West, 11 Vet. App. 314 (1998).
The CAVC has additionally held that in order to establish
service connection by means of a medical treatise, the
treatise evidence must "not simply provide speculative
generic statements not relevant to the veteran's claim".
Wallin v. West, 11 Vet. App. 509, 514 (1998).
The treatise evidence, "standing alone", must discuss
"generic relationships with a degree of certainty such that,
under the facts of a specific case, there is at least
plausible causality based upon objective facts rather than on
an unsubstantiated lay medical opinion." Ibid. Sacks,
supra.
The treatise material must have the requisite "degree of
certainty" required by Wallin and Sacks, supra; see also
Libertine, 9 Vet. App. At 523 (medical treatise evidence must
demonstrate connection between service incurrence and present
injury or condition).
When, after consideration of all the evidence and material of
record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran. 38
C.F.R. §§ 3.102, 4.3 (2004).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. Where there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West 2002).
Preliminary Matter: Duties to Notify & to Assist
The Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). In addition, VA
has published regulations to implement many of the provisions
of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a) (2004)).
The Board is aware that there has been a significant amount
of analysis pertaining to the effective date, the scope, and
the remedial aspects of the VCAA. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003); Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d 1344 (Fed. Cir. 2003)
(but see Public Law No. 108-183, § 701, 117 Stat. 2651, 2670-
71 (Dec. 16, 2003); Conway v. Principi, 353 F.3d 1369 (Fed.
Cir. 2004); Pelegrini v. Principi, ___ Vet. App. ___, No. 01-
944 (June 24, 2004). See also VAOPGCPREC 11-00 (Nov. 27,
2000); VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 8-2003
(Dec. 22, 2003); VAOPGCPREC 1-2004 (Feb. 24, 2004).
Given the uncertainty as to the precise application of the
VCAA, exemplified in the authorities cited above, the Board
assumes that the VCAA is applicable to this appeal. The
Board is aware that in Pelegrini, cited above, the Court
stated that, under the VCAA,
the Secretary must provide notice . . . that informs the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim, (2) that VA will
seek to provide, and (3) that the claimant is expected to
provide. Furthermore . . . , in what can be considered a
fourth element of the requisite notice, VA must "also
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim." 38
C.F.R. § 3.159(b)(1); see 38 U.S.C.
§ 5103A(g) . . . .
Pelegrini, supra, slip op. at 11.
The VA General Counsel recently issued a precedent opinion
interpreting the Court's decision in Pelegrini. In essence,
and as pertinent herein, the General Counsel endorsed the
notice requirements quoted immediately above, and held that,
to comply with VCAA requirements,
the Board must ensure that complying notice is provided
unless the Board makes findings regarding the completeness of
the record or as to other facts that would permit [a
conclusion] that the notice error was harmless, including an
enumeration of all evidence now missing from the record that
must be a part of the record for the claimant to prevail on
the claim.
VAOPGCPREC 7-2004 (July 16, 2004). Considering both the
decision of the Court in Pelegrini and the opinion of the
General Counsel, the Board finds that the requirements of the
VCAA have been satisfied in this matter, as discussed below.
In May 2001 and November 2001, the RO formally notified the
veteran of the VCAA of 2000 with respect to the issues on
appeal. Quartuccio v. Principi, 16 Vet. App. 183 (2002). He
was essentially notified to submit all pertinent evidence in
support of his claim. Such notice sufficiently placed the
veteran on notice of what evidence could be obtained by whom
and of his responsibilities if he wanted such evidence to be
obtained by VA. Following the receipt of additional
evidence, the RO confirmed and continued the denial of the
veteran's claim. The case was forwarded to the Board for
appellate review.
The duty to notify has been satisfied, as the appellant has
been provided with notice of what is required to substantiate
his claim. The RO also provided the appellant with the
reasons his claim could not be granted based upon the
evidence of record.
The Board recognizes that the initial RO decision was made
prior to November 9, 2000, the date the VCAA was enacted.
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
Complete compliance of VCAA notice to the appellant was given
in May 2001 and November 2001, prior to transfer of this case
to the Board. The content of the notice fully complied with
the requirements of 38 U. S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b). The claimant has been provided with every
opportunity to submit evidence and argument in support of his
claims, and to respond to VA notices.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996);see also
38 C.F.R. § 20.1102 (harmless error).
With respect to the veteran's claim of entitlement to service
connection for residuals of a back injury, including
disability(ies) of the cervical, thoracic and or lumbar
spine, on a de novo basis, the provisions of 38 U.S.C.A. §
5103A(d) require VA to obtain medical examination or opinion
if necessary to make a decision on a claim. In this case,
the veteran's service medical records and physical
examination for service separation, are silent for any
identifiable underlying chronic cervical, thoracic and/or
lumbar spine disability(ies). The first evidence of an
apparent disability(ies) of the cervical, thoracic and/or
lumbar spine was/were noted years following separation from
active service. The record is absent any favorable medical
opinion that is based on a review of the veteran's claims
file.
As addressed below, the veteran has provided no competent
evidence that his current cervical, thoracic and/or lumbar
spine disability(ies) is/are associated with active service.
Absent such evidence, the Board has no obligation to provide
a medical examination. Wells v. Principi, 326 F. 3d. 1381,
1384 (Fed. Cir. 2003). As such, the Board finds that no
reasonable possibility exists that any further assistance
would aid the veteran in substantiating his claim and that
the requirements of the VCAA have been met.
Importantly, the Board points out that the veteran's argument
regarding rebutting the presumption of soundness under 38
U.S.C.A §§ 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003),
is not for application in this case, as the veteran is not
shown to have developed a chronic cervical, thoracic and/or
lumbar spine disability(ies) until many years following
separation from active duty.
The Board concludes that all relevant evidence has been
obtained for determining the merits of the veteran's claim of
entitlement to service connection for bilateral inguinal
hernia repairs. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(d).
The record contains competent medical evidence upon which to
base an appellate decision. In this case, VCAA requirements
have been fully satisfied.
New and Material Evidence
The veteran seeks to reopen his claim of entitlement to
service connection for residuals of a spine/back injury,
which the RO denied in an unappealed July 1978 decision.
When an appellant seeks to reopen a finally denied claim, the
Board must review all of the evidence submitted since that
action to determine whether the claim should be reopened and
readjudicated on a de novo basis. Glenn v. Brown, 6 Vet.
App. 523, 529 (1994).
In order to reopen a finally denied claim, there must be new
and material evidence presented since the claim was last
finally disallowed on any basis, not only since the claim was
last denied on the merits. Evans v. Brown, 9 Vet. App. 273
(1996).
Under Evans, evidence is new if not previously of record, and
not merely cumulative of evidence previously of record.
The Board notes that the medical evidence on file at the time
of the unappealed July 1978 RO decision failed to demonstrate
the presence of an identifiable chronic spine/back
disability, however diagnosed, in active duty or following
separation from active duty.
Importantly, the probative evidence obtained in connection
with the veteran's attempt to reopen his claim consists of
pertinent medical records noting the presence of chronic
cervical and low back disabilities, variously diagnosed.
Also, statements from the veteran's treating physician relate
the veteran's neck symptoms to an injury in active service.
The Board notes that the additional evidence is both new and
material as it contributes to a more complete picture of the
circumstances pertaining to the veteran's claim.
Accordingly, the veteran's claim of entitlement to service
connection for residuals of a spine/back injury is reopened.
38 C.F.R. § 3.156(a).
Service Connection for Residuals of a Back Injury, including
Cervical, Thoracic and/or Lumbar Spine Disability(ies)
The Board may proceed in considering the issue of entitlement
to service connection for residuals of a back injury,
including cervical, thoracic and/or lumbar spine
disability(ies) on a de novo basis, without prejudice shown
to the veteran in view of the RO's apparent complete review
of the evidence on a de novo basis during the course of the
appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). Since
the record is complete, there is no need to remand this case
for additional development of the evidence.
With respect to the veteran's claim of entitlement to service
connection for residuals of a back injury, including
cervical, thoracic and/or lumbar spine disability(ies), the
provisions of 38 U.S.C.A. § 5103A(d) require VA to obtain
medical examination or opinion if necessary to make a
decision on a claim. The veteran's service medical records,
including treatment records surrounding the veteran falling
off a ladder, are completely silent for any identifiable
underlying cervical, thoracic and/or lumbar spine disability,
however diagnosed. The first evidence of any apparent
cervical, thoracic and/or lumbar spine disability(ies)
disability was noted many years following separation from
active duty along with indication of intercurrent postservice
employment back injury.
As addressed below, the veteran has provided no competent
medical evidence that his current cervical and/or low back
disability(ies) is/are associated with active service.
Absent such evidence, the Board has no obligation to provide
a medical examination. Wells v. Principi, 326 F. 3d. 1381,
1384 (Fed. Cir. 2003). As such, the Board finds that no
reasonable possibility exists that any further assistance
would aid the veteran in substantiating his claim and that
the requirements of the VCAA have been met.
Following the point at which it is determined that all
relevant evidence has been obtained, it is the Board's
principal responsibility to assess the credibility, and
therefore the probative value of proffered evidence of record
in its whole. Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir.
2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir.
1997); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (and
cases cited therein).
In this case, a comprehensive review of the record shows that
competent medical evidence demonstrates that there is no
nexus or etiologic link between the veteran's current
cervical and/or low back disabilities, however diagnosed,
including arthritis, as first demonstrated many years
following separation from the service and any incident of
active duty.
Specifically, the Board notes that the veteran's service
medical records, including treatment records regarding
injuries sustained by the veteran after falling 20 feet off a
ladder are completely silent for any identifiable underlying
chronic cervical, thoracic and/or lumbar spine disability.
Importantly, the physical examination undertaken in July
1965, for separation from active duty, shows a normal
clinical evaluation of the cervical, thoracic and lumbar
spine.
Importantly, the pertinent postservice medical records are
silent for any evidence of cervical and/or low back
disability(ies), including arthritis until the 1990's, many
years following separation from active duty with evidence of
apparent intercurrent postservice employment back injuries.
Significantly, the record is without any probative competent
medical evidence demonstrating an etiologic link or nexus
between any cervical, thoracic and/or lumbar spine
disability(ies), however diagnosed, and the veteran's active
duty. Nor is there competent medical evidence of a
relationship between the veteran's current cervical and low
back disabilities and his alleged continuity of
symptomatology, especially in view of a March 1999 treatment
record in which he essentially noted having chronic back
problems since sustaining employment related back injuries a
few years earlier. See Voerth v. West, 13 Vet. App. 117
(1999); McManaway v. West, 13 Vet. App. 60 (1999); Savage v.
Gober, 10 Vet. App. 488 (1997).
Importantly, the Board notes that the favorable medical
opinion expressed by the veteran's treating physician for
spine/back problems, which related the veteran's
cervical/neck disability to a neck injury in service was
without review of the veteran's claims file. The physician's
opinion was based solely on the veteran's reported history
and is not supported by the objective evidence of record.
Significantly, the Board must point out that the record does
not include a competent medical opinion favorable to the
veteran's claim based on a review of the claims file.
While the medical record notes the veteran's reported history
of a neck/back injury in service, the Board points out that a
bare transcription of lay history, unenhanced by additional
comment by the transcriber, does not become competent medical
evidence merely because the transcriber is a health care
professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
Moreover, the medical articles submitted by the veteran
is/are general or inconclusive in nature and cannot support
the veteran's claim.
Also, the veteran's bare opinion, as a lay person, is of no
probative value in light of the requirement for medical
evidence linking any current disability(ies) of the cervical,
thoracic and/or lumbar spine with his active service. The
CAVC has held that lay assertions of medical causation do not
constitute competent evidence. Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492,
495 (1992). Similarly, the lay statement from S.L.,
suggesting a relationship between the veteran's current
spine/back problems and active service is of no probative
value.
Simply put, the competent and probative medical evidence of
record fails to establish that the veteran has chronic
residuals of a back injury, including cervical, thoracic
and/or lumbar spine disability(ies) that is/are linked to
active service, on any basis.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim of
entitlement to service connection for residuals of a back
injury, including cervical, thoracic and/or lumbar spine
disability(ies). Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990).
ORDER
The veteran, having submitted new and material evidence to
reopen a claim of entitlement to service connection for
residuals of a spine/back injury, the appeal is granted to
this extent only.
Entitlement to service connection for residuals of a back
injury, including cervical, thoracic and/or lumbar spine
disability(ies), is denied.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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